Motion for Case Management in JOHN DESMOND VS. GULFISH L.P., A CALIFORNIA LIMITED LIABILITY ET AL| Trellis.Law

On March 21, 2019 a Answer was filed involving a dispute between Desmond, John, and Does 1 To 10 Inclusive, Galle, James S., Gilfish Management, Llc, Gulfish, L.P., Gulfish L.P., A California Limited Liability, Gulfish Management, Llc, for OTHER NON EXEMPT COMPLAINTS in the District Court of San Francisco County.

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1 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
A Limited Liability Partnership
2 Including Professional Corporations ELECTRONICALLY
PAUL S. COWIE, Cal. Bar No. 250131
3 BROOKE S. PURCELL Cal Bar No. 247708 FILED
Superior Court of California,
4 Embarcadero Center, 17th Floor County of San Francisco
4 San Francisco, California 94111-4158
Telephone: 415.434.9100 06/20/2019
Clerk of the Court
5 Facsimile: 415.434.3947 BY: EDWARD SANTOS
Email: pcowie@sheppardmullin.com Deputy Clerk
6 bpurcell@sheppadmullin.com

7 Attorneys for Defendants
GULFISH L.P., GULFISH MANAGEMENT, LLC
8 and JAMES S. GALLE

10 SUPERIOR COURT OF THE STATE OF CALIFORNIA

11 COUNTY OF SAN FRANCISCO

13 JOHN DESMOND, an individual, Case No. CGC-19-574708

14 Plaintiff, DEFENDANTS GULFISH L.P., GULFISH
MANAGEMENT, LLC AND JAMES S.
15 v. GALLE’S ANSWER TO PLAINTIFF
JOHN DESMOND’S COMPLAINT
16 GULFISH L.P., a California limited partnership
company; GULFISH MANAGEMENT, LLC, a
17 California limited liability company; JAMES S.
GALLE, an individual; and DOES 1 through 10,
18 inclusive,

19 Defendants. Complaint Filed: March 21, 2019
Trial Date: None Set
20

26
27

-1- Case No. CGC-19-574708
SMRH:4852-3469-1482.1 DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 Defendants Gulfish L.P., Gulfish Management, LLC and James S. Galle (“Defendants”) hereby

2 answer the March 21, 2019 Complaint of Plaintiff John Desmond (“Plaintiff”) as follows:

3 GENERAL DENIAL

4 Pursuant to the provisions of Section 431.30(d) of the California Code of Civil Procedure,

5 Defendants deny generally and specifically each and every cause of action and purported allegation and

6 cause of action set forth in the Complaint, and further deny that Plaintiff was damaged in the sum

7 alleged or sums alleged or in any sum or at all.

8 AFFIRMATIVE DEFENSES

9 FIRST AFFIRMATIVE DEFENSE

10 (Failure to State a Cause of Action)

11 1. The Complaint, and each and every purported cause of action alleged therein, fails to

12 state facts sufficient to constitute a cause of action against Defendants.

13 SECOND AFFIRMATIVE DEFENSE

14 (Primary Jurisdiction Doctrine)

15 2. The Complaint, and each and every purported cause of action alleged therein, should be

16 abated in the Court's discretion and Plaintiff should be ordered to pursue his administrative remedies

17 with the Division of Labor Standards Enforcement and/or Workforce Development Agency, which have

18 primary jurisdiction over these claims.

19 THIRD AFFIRMATIVE DEFENSE

20 (Statute of Limitations)

21 3. The Complaint, and each and every purported cause of action alleged therein, is barred by

22 the applicable statutes of limitations, including but not limited to, California Code of Civil Procedure

23 sections 337, 338, 339, and 340.

24 FOURTH AFFIRMATIVE DEFENSE

25 (Laches)

26 4. Defendants are informed and believe, and based upon such information and belief allege,
27 that the Complaint, and each and every purported cause of action alleged therein, is barred by the

28 doctrine of laches, in that Plaintiff unreasonably delayed in bringing the action because he did not act

-2- Case No. CGC-19-574708
SMRH:4852-3469-1482.1 DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 within a reasonable time in seeking the wages at issue, or otherwise reporting any alleged violation of

2 wage and hour laws, and has unreasonably delayed in the filing of this lawsuit, causing Defendants to

3 suffer prejudice.

4 FIFTH AFFIRMATIVE DEFENSE

5 (Unclean Hands)

6 5. Defendants are informed and believe, and based upon such information and belief allege,

7 that the Complaint, and each and every purported cause of action alleged therein, is barred by the

8 doctrine of unclean hands, because of, among other things, misrepresentations made by Plaintiff and/or

9 the alleged aggrieved employees, in that Plaintiff and the alleged aggrieved employees were expected to

10 take meal and rest breaks and not work off the clock, and never informed Defendants that he, or they,

11 were denied or forced to forego meal and rest breaks or work or work off the clock. Further, Plaintiff

12 was provided accurate wage statements and timely paid all wages earned and never informed

13 Defendants that he was not provided accurate wage statements and/or timely paid all wages earned to

14 which he was allegedly entitled.

15 SIXTH AFFIRMATIVE DEFENSE

16 (Waiver)

17 6. Defendants are informed and believe that Plaintiff has waived some or all of the

18 purported causes of action alleged in the Complaint by virtue of his prior representations, actions and

19 inaction with respect to meal and rest breaks, wage statements, wages and/or any alleged off the clock

20 work at issue.

21 SEVENTH AFFIRMATIVE DEFENSE

22 (Estoppel)

23 7. Defendants are informed and believe that a reasonable opportunity for investigation and

24 discovery will reveal, and on that basis alleges, the Complaint and each cause of action set forth therein

25 are barred by the doctrine of estoppel.

26 ///
27 ///

28 ///

-3- Case No. CGC-19-574708
SMRH:4852-3469-1482.1 DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 EIGHTH AFFIRMATIVE DEFENSE

2 (Justification)

3 8. Any acts alleged to have been committed by Defendants were committed in the exercise

4 of good faith, with probable cause, were not arbitrary or capricious, were based upon legitimate reasons,

5 and were reasonable and justified under the circumstances.

6 NINTH AFFIRMATIVE DEFENSE

7 (Bona Fide Dispute)

8 9. Defendants allege there exists a bona fide dispute as to whether any further compensation

9 is actually due to Plaintiff and, if so, the amount thereof. Defendant is informed and believes that

10 further investigation and discovery will reveal, and on that basis alleges, that any violation of the Labor

11 Code or an Order of the Industrial Welfare Commission was an act or omission made in good faith and

12 Defendant had reasonable grounds for believing that its wage payment, meal and rest period, sick time,

13 wage statement, and expense reimbursement practices complied with applicable laws and that any such

14 act or omission was not a violation of the Labor Code or any Order of the Industrial Welfare

15 Commission such that Plaintiff is not entitled to any penalties or damages in excess of any wages which

16 might be found to be due.

17 TENTH AFFIRMATIVE DEFENSE

18 (Lack of Knowledge)

19 10. Defendants allege they had no knowledge, and could not reasonably have known, of any

20 off-the clock work by Plaintiff.

21 ELEVENTH AFFIRMATIVE DEFENSE

22 (Res Judicata, Bar and Merger, Settlement/Release)

23 11. The causes of action set forth in the Complaint and in each of the purported causes of

24 action alleged therein are subject to settlement/release agreements, and/or the doctrine of res judicata,

25 which constitute a complete or partial bar to the present action.

26 ///
27 ///

28 ///

-4- Case No. CGC-19-574708
SMRH:4852-3469-1482.1 DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 TWELFTH AFFIRMATIVE DEFENSE

2 (Collateral Estoppel)

3 12. The Complaint, and each and every purported cause of action alleged therein, is barred,

4 in whole or in part by the doctrine of collateral estoppel.

5 THIRTEENTH AFFIRMATIVE DEFENSE

6 (Breach of Duty)

7 13. Defendants are informed and believe that a reasonable opportunity for investigation and

8 discovery will reveal, and on that basis allege, that Plaintiff’s claims, are barred by his own breach of the

9 duties owed to Defendants under California Labor Code sections 2854, 2856, 2857, 2858 and/or 2859.

10 FOURTEENTH AFFIRMATIVE DEFENSE

11 (Clerical Error / Inadvertent Mistake)

12 14. Defendants allege that, even assuming arguendo Plaintiff were entitled to receive

13 itemized wage statements and that he was not provided with a proper itemized statement of wages and

14 deductions, Plaintiff should not recover damages or penalties because Defendants’ alleged failure to

15 comply with California Labor Code section 226(a) was the result of clerical error or inadvertent mistake.

16 FIFTEENTH AFFIRMATIVE DEFENSE

17 (Unconstitutional Wage Order)

18 15. Defendants allege that the Complaint and each cause of action therein, or some of them,

19 are barred because the applicable wage orders of the Industrial Welfare Commission are

20 unconstitutionally vague and ambiguous and violate Defendants’ rights under the United States

21 Constitution and the California Constitution as to, among other things, due process of law.

22 SIXTEENTH AFFIRMATIVE DEFENSE

23 (Failure by Plaintiff to Follow Directions)

24 16. Defendants allege that they are informed and believe that a reasonable opportunity for

25 investigation and discovery will reveal, and on that basis allege, that any failure to comply with

26 Defendants’ work-time recording and/or reporting and/or overtime and/or meal or rest break rules, was
27 the result of failure by Plaintiff to follow Defendants’ reasonable instructions.

28 ///

-5- Case No. CGC-19-574708
SMRH:4852-3469-1482.1 DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 SEVENTEENTH AFFIRMATIVE DEFENSE

2 (Preemption)

3 17. Defendants allege that to the extent Plaintiff’s claims involve conduct that is, or seeks

4 remedies that are, governed or regulated by federal law, such claims are preempted. Defendants further

5 assert that Plaintiff’s claims are preempted by California statute.

6 EIGHTEENTH AFFIRMATIVE DEFENSE

7 (Preemption by Transportation Code and Regulations)

8
18. Defendants allege that the Complaint is barred, in whole or in part to the extent that the
9
California Labor Code conflicts with federal or California regulation of transportation or transportation
10
safety, including 49 U.S.C. § 5125, et seq.
11
NINETEENTH AFFIRMATIVE DEFENSE
12
(Preemption – Federal Aviation Administration Authorization Act)
13

14 19. Defendants assert that the provisions of the Federal Aviation Administration

15 Authorization Act, 49 U.S.C. section 14501, et seq. conflict with the requirements of California Labor

16 Code, and the IWC Wage Orders, such that Defendant’s compliance with the Act necessarily precludes

17 compliance with the Labor Code and/or IWC Wage Orders, and therefore under principles of conflict

18 preemption, federal law supersedes any contrary state law requirements and accordingly, all claims

19 based on and derivative of claims under Labor Code or the IWC Wage Orders must be adjudicated in

20 Defendants’ favor.

21 TWENTIETH AFFIRMATIVE DEFENSE

22 (Preemption – Federal Motor Carrier Act)

23 20. Defendants assert that the provisions of the Federal Motor Carrier Act conflict with the

24 requirements of the California Labor Code, and the IWC Wage Orders, such that Defendant's

25 compliance with the Act necessarily precludes compliance with the Labor Code and/or IWC Wage

26 Orders, and therefore under principles of conflict preemption, federal law supersedes any contrary state
27 law requirements and accordingly, all claims based on and/or derivative of claims under Labor Code or

28 the IWC Wage Orders must be adjudicated in Defendants’ favor.

-6- Case No. CGC-19-574708
SMRH:4852-3469-1482.1 DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 TWENTY-FIRST AFFIRMATIVE DEFENSE

2 (Preemption – Federal Motor Carrier Safety Improvement Act)

3 21. Defendants assert that the Complaint and each cause of action set forth therein, or some

4 of them, cannot be maintained against Defendants because they are preempted by, among other federal

5 statutes, the Federal Motor Carrier Safety Improvement Act, the Federal Motor Carrier Safety Act, and

6 all other applicable federal statutes and regulations. Accordingly, all claims based on and/or derivative

7 of claims under Labor Code or the IWC Wage Orders must be adjudicated in Defendants’ favor.

8 TWENTY-SECOND AFFIRMATIVE DEFENSE

9 (Preemption – Commerce Clause)

10 22. Defendants assert that the Commerce Clause of the United States Constitution bars

11 Plaintiff’s claims.

12 TWENTY-THIRD AFFIRMATIVE DEFENSE

13 (Preemption – Supremacy Clause)

14 23. Defendants assert that the Supremacy Clause of the United States Constitution bars

15 Plaintiff’s claims. Lorrilard Tobacco Co. v. Reilly (2001) 533 U.S. 525.

16 TWENTY-FOURTH AFFIRMATIVE DEFENSE

17 (Railway Labor Act)

18 24. Defendants allege that, to the extent Plaintiff’s claims constitute minor disputes under the

19 Railway Labor Act, 25 U.S.C. 151 et seq., such claims are preempted. Hawaiian Airlines v. Norris

20 (1994) 512 U.S. 246.

21 TWENTY-FIFTH AFFIRMATIVE DEFENSE

22 (Obstacle Preemption)

23 25. Defendants allege that the Complaint and each cause of action set forth therein, or some

24 of them, cannot be maintained against Defendants because they are preempted by obstacle preemption.

25 TWENTY-SIXTH AFFIRMATIVE DEFENSE

26 (Field Preemption)
27 26. Defendants allege that the Complaint and each cause of action set forth therein, or some

28 of them, cannot be maintained against Defendants because they are preempted by field preemption.

-7- Case No. CGC-19-574708
SMRH:4852-3469-1482.1 DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 TWENTY-SEVENTH AFFIRMATIVE DEFENSE

2 (Failure to Exhaust)

3 27. Defendants are informed and believe, and based upon such information and belief allege,

4 that the Complaint, and each and every purported cause of action alleged therein, is barred, in whole or

5 in part, because Plaintiff failed to timely and completely exhaust requisite administrative remedies

6 available to them under the California Labor Code or other provisions of law or contract prior to

7 commencement of this action.

8 TWENTY-EIGHTH AFFIRMATIVE DEFENSE

9 (De Minimis)

10 28. Defendants allege that the Complaint and each cause of action set forth therein, or some

11 of them, cannot be maintained against Defendants because Defendants’ acts or omissions, if any, and the

12 alleged time involved and/or damages are de minimis.

13 TWENTY-NINTH AFFIRMATIVE DEFENSE

14 (No Private Right of Action)

15 29. Defendants allege that there is no private right of action to recover the penalties sought

16 by Plaintiff and that Plaintiff has not complied with the procedural requirements for seeking any such

17 penalties.

18 THIRTIETH AFFIRMATIVE DEFENSE

19 (Unjust, Arbitrary and Oppressive, or Confiscatory Penalties)

20 30. Defendants allege assessment of civil penalties would be unjust, arbitrary and oppressive,

21 or confiscatory within the meaning of Labor Code section 2699(e)(2).

22 THIRTY-FIRST AFFIRMATIVE DEFENSE

23 (Exempt from Overtime)

24 31. Defendants allege that Plaintiff’s claims are barred, in whole or in part, because Plaintiff

25 was at all times an exempt employee and not entitled to overtime pay or additional wages under Labor

26 Code § 226.7.
27 ///

28 ///

-8- Case No. CGC-19-574708
SMRH:4852-3469-1482.1 DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 RESERVATION OF RIGHT TO AMEND ANSWER

2 Defendants hereby give notice that it intends to rely on such other and further defenses as may

3 become available during discovery in this action and reserves the right to amend the Answer to assert

4 any such defenses.

5 PRAYER

6 WHEREFORE, Defendants pray for judgment as follows:

7 1. That the Complaint be dismissed with prejudice in its entirety;

8 2. That Plaintiff takes nothing by reason of the Complaint;

9 3. That Defendants be awarded its costs of suit and reasonable attorneys' fees to the

10 extent provided by law; and,

11 4. For such other and further relief as the Court may deem just and proper.

13 Dated: June 20, 2019 Respectfully submitted,
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
14

15
By:
16 PAUL S. COWIE
BROOKE S. PURCELL
17

18 Attorneys for
GULFISH L.P., GULFISH MANAGEMENT, LLC
19 and JAMES S. GALLE

26
27

-9- Case No. CGC-19-574708
SMRH:4852-3469-1482.1 DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 PROOF OF SERVICE

2 John Desmond v. Gulfish L.P., et al.
San Francisco County Superior Court Case No. CGC-19-574708
3
At the time of service, I was over 18 years of age and not a party to this action. I am
4 employed in the County of San Francisco, State of California. My business address is Four
Embarcadero Center, 17th Floor, San Francisco, CA 94111-4109.
5
On June 20, 2019, I served true copies of the following document(s) described as:
6
DEFENDANTS GULFISH L.P., GULFISH MANAGEMENT, LLC AND JAMES S.
7 GALLE’S ANSWER TO PLAINTIFF JOHN DESMOND’S COMPLAINT

8 on the interested parties in this action as follows:

9 Edward J. Wynne, Esq. Attorneys for Plaintiff,
George Nemiroff, Esq. JOHN DESMOND
10 WYNNE LAW FIRM
80 E. Sir Francis Drake Blvd., Suite 3G
11 Larkspur, CA 94939
Telephone: (415) 461-6400
12 Facsimile: (415) 461-3900
Email: ewynne@wynnelawfirm.com
13 gnemiroff@wynnelawfirm.com

14
BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the
15 persons at the addresses listed in the Service List and placed the envelope for collection
and mailing, following our ordinary business practices. I am readily familiar with the
16 firm's practice for collecting and processing correspondence for mailing. On the same day
that correspondence is placed for collection and mailing, it is deposited in the ordinary
17 course of business with the United States Postal Service, in a sealed envelope with postage
fully prepaid. I am a resident or employed in the county where the mailing occurred.
18
BY FAX TRANSMISSION: I faxed a copy of the document(s) to the persons at the fax
19 numbers listed in the Service List. The telephone number of the sending facsimile
machine was 415.434.3947. The transmission was reported as complete and without error.
20 No error was reported by the fax machine that I used. A transmission report was properly
issued by the sending fax machine.
21
BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the
22 document(s) to be sent from e-mail address eruiz@sheppardmullin.com to the persons at
the e-mail addresses listed in the Service List. I did not receive, within a reasonable time
23 after the transmission, any electronic message or other indication that the transmission was
unsuccessful.
24
BY OVERNIGHT DELIVERY: I enclosed said document(s) in an envelope or package
25 provided by the overnight service carrier and addressed to the persons at the addresses
listed in the Service List. I placed the envelope or package for collection and overnight
26 delivery at an office or a regularly utilized drop box of the overnight service carrier or
delivered such document(s) to a courier or driver authorized by the overnight service
27 carrier to receive documents.

-1- Case No. CGC-19-574708
SMRH:4852-3469-1482.1 PROOF OF SERVICE
1 BY PERSONAL SERVICE: I delivered the document(s) to Wheels of Justice (WOJ) for
personal service to the person at the addresses listed in the Service List. (1) For a party
2 represented by an attorney, delivery was made to the attorney or at the attorney's office by
leaving the documents in an envelope or package clearly labeled to identify the attorney
3 being served with a receptionist or an individual in charge of the office. (2) For a party,
delivery was made to the party or by leaving the documents at the party's residence with
4 some person not less than 18 years of age between the hours of eight in the morning and
six in the evening.
5
I declare under penalty of perjury under the laws of the State of California that the
6 foregoing is true and correct.

7 Executed on June 20, 2019, at San Francisco, California.

11 Elena E. Ruiz
12

26
27

-2- Case No. CGC-19-574708
SMRH:4852-3469-1482.1 PROOF OF SERVICE

Case Info

Judge

Garrett L. Wong Track Judge’s New Case

Case No.

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Document Filed Date

June 20, 2019

Case Filing Date

March 21, 2019

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Answer: JOHN DESMOND VS. GULFISH L.P., A CALIFORNIA LIMITED LIABILITY ET AL

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